All posts by Nicholas Stephanopoulos

Montana Supreme Court EDR Decision

In a case being litigated by Harvard Law School’s Election Law Clinic, the ACLU, the ACLU of Montana, and the Native American Rights Fund, the Montana Supreme Court affirmed preliminary injunctions against (1) the elimination of election day registration and (2) the elimination of student IDs as a valid form of voter identification. The decision is here and is based on the state constitutional right to vote. An excerpt from the ACLU’s press release is below.

The Montana Supreme Court today affirmed a preliminary injunction blocking a state law that hinders Native American participation in the state’s electoral process. 

The decision upholds a preliminary injunction against HB 176, which had ended Election Day registration in Montana. Native American voters living on reservations in Montana disproportionately rely upon Election Day registration to register and vote. . . .

Plaintiffs have also secured a preliminary injunction against HB 530, a prohibition on paid third-party ballot collection in Montana, and yet another law that disproportionately and severely burdens Native Americans’ right to vote.

Last month, the Montana 13th Judicial District Court held a two-week trial in the case, involving challenges to HB 176, HB 530, and two other voting-related laws challenged by consolidated plaintiffs. The Court is expected to rule on the full challenges to those laws in the relatively near future.

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“An algorithmic approach to legislative apportionment bases and redistricting”

Christian Haas, Peter Miller, and Steven Kimbrough have posted this very interesting paper using a redistricting algorithm to estimate the impact on minority representation of changing the apportionment base from total population to CVAP. Their results are consistent with this earlier piece I wrote with Jowei Chen. The abstract of the new Haas et al. paper is below.

The apportionment process that precedes redistricting is generally a staid American political ritual. Recent debates about who should be included in the apportionment basis, however, have raised new questions about representation in the apportionment process. To estimate the effects of excluding non-citizens and children from apportionment, we describe an algorithm to simulate drawing of state legislative districts, based on a previously published algorithm, Seed-Fill-Shift-Repair (SFSR), designed to draw congressional districts. To account for the larger number of districts to draw we implement an adapted search heuristic that is able to efficiently create contiguous and population-balanced maps for state legislative districts, which we call SFSR-G. We use SFSR-G to simulate 1000 maps of upper and lower legislative chambers in 12 states to demonstrate that a shift from total population to citizen voting age population as the apportionment basis will reduce minority–majority and minority-opportunity districts. The paper presents findings for all 12 states investigated, and discusses the important case of Texas at greater length.

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“The Partisan Implications of the ISL Theory”

I wrote this piece for Democracy Docket on the partisan implications of the independent state legislature doctrine, solely with respect to congressional redistricting (the subject of Moore v. Harper).

However, at least in the context presented by Moore — congressional redistricting — this assumption is too quick. Of course, in North Carolina itself, the adoption of the ISL theory could result in a fair map being replaced by a Republican gerrymander. But nationwide, North Carolina is more the exception than the rule. Overall, Democrats would modestly benefit from a holding that state legislatures’ ability to draw congressional districts can’t be limited by state courts, independent commissions, or supermajority requirements. To be clear, these partisan effects in no way vindicate the ISL theory. It remains a pernicious claim unsupported by history or precedent that could transfer power to some of the institutions — state legislatures — least deserving of it. Nevertheless, given the Court’s interest in the ISL theory, its partisan implications are well worth investigating. . . .

Finally, the hypothetical Democratic or Republican gerrymander for each potentially affected state simply has to be compared to the enacted plan to estimate the impact of the ISL theory’s adoption. For instance, the most pro-Republican map in the ALARM Project’s North Carolina simulation set is expected to yield 5.0 Democratic seats (out of 14). In contrast, the enacted North Carolina plan is expected to yield 6.9 Democratic seats. This means a ruling in favor of the Moore petitioners might enable North Carolina Republicans to increase their seat tally by about two. Similarly, the most pro-Democratic map in the ALARM Project’s California simulation set has 46.5 Democratic seats (out of 52) while the enacted California plan has 44.5 Democratic seats. If Moore ended the experiment of independent commissions, then, California Democrats might be able to win around two more seats. 

The California example shows that Republican gains due to the ISL theory’s adoption could be counterbalanced by additional Democratic seats elsewhere. In fact, aggregating across all fourteen potentially affected states, Republican gains would be more than offset by extra Democratic seats. There’s only one state other than North Carolina where Republicans could benefit from a ruling for the Moore petitioners: Arizona, where a Republican gerrymander might have 0.4 more Republican seats than the enacted congressional plan. However, there are seven states beyond California where Democrats could be advantaged by a holding that state legislatures can gerrymander to their heart’s content: Colorado (0.9 more Democratic seats), New York (0.7), Washington (0.6), Connecticut (0.5), New Jersey (0.5), Maine (0.2) and Maryland (0.2). Summing these figures, Republicans could add roughly 2.3 seats from the ISL theory’s adoption while Democrats could tally about 5.6 seats more. The chart below displays these results graphically. 

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“Widespread Partisan Gerrymandering Mostly Cancels Nationally, but Reduces Electoral Competition”

This interesting new paper by Chris Kenny et al. compares the newly enacted House plans across the country to sets of randomly generated maps. The bottom line is that the House as a whole is just slightly more pro-Republican than would be expected under nonpartisan redistricting. There’s plenty of gerrymandering but it mostly cancels out.

Congressional district lines in many U.S. states are drawn by partisan actors, raising
concerns about gerrymandering. To isolate the electoral impact of gerrymandering
from the effects of other factors including geography and redistricting rules, we
compare predicted election outcomes under the enacted plan with those under a
large sample of non-partisan, simulated alternative plans for all states. We find that
partisan gerrymandering is widespread in the 2020 redistricting cycle, but most of
the bias it creates cancels at the national level, giving Republicans two additional
seats, on average. In contrast, moderate pro-Republican bias due to geography and
redistricting rules remains. Finally, we find that partisan gerrymandering reduces
electoral competition and makes the House’s partisan composition less responsive
to shifts in the national vote.

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“Republicans’ next big play is to ‘scare the hell out of Washington’ by rewriting the Constitution. And they’re willing to play the long game to win.”

Interesting story about the effort by conservatives to call a constitutional convention. One wonders why conservatives are the ones pushing this idea, given the record of the current Court, and why progressives are so content with the constitutional status quo.

“You take this grenade and you pull the pin, you’ve got a live piece of ammo in your hands,” Santorum, a two-time GOP presidential candidate and former CNN commentator, explained in audio of his remarks obtained by the left-leaning watchdog group the Center for Media and Democracy and shared with Insider. “34 states — if every Republican legislator votes for this, we have a constitutional convention.” . . .

Some states have tried and tried — without result — to prompt a constitutional convention. They’ve together issued hundreds of pro-convention resolutions or calls over 200 years to reroute constitutional amendment powers away from Washington. What’s new now is the ever-evolving power coupling of a corporation-backed ideological juggernaut led by ALEC, a nonprofit organization with close ties to large tobacco and drug companies, and a determined Republican Party increasingly dominating many of the nation’s 50 statehouses.  . . .

Their goals include gutting federal environmental standards, nixing nationwide education requirements, and creating an incredibly high threshold for Washington, DC, or a territory to earn statehood. Some would like to make it difficult, if not impossible, for someone — National Institute of Allergy and Infectious Diseases Director Anthony Fauci, for example — to work for decades within the federal government.

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“American media wants to save democracy. Is it helping?”

Interesting LAT story on the role of the media in reporting on — and shaping — the debate about American democracy.

Top American journalism leaders have publicly argued that the continued existence of democracy in the U.S. is no longer something that can be taken for granted. Efforts to undermine voters’ choices across the U.S. have given way to new “democracy” beats, where newsroom editors and reporters no longer simply cover candidates and elections but voter registration laws, ballot access and election integrity. . . .

There are signs that some of those attitudes have also reached the newsroom rank-and-file. While 76% of American adults polled in a recent Pew Research Center study said that journalists should always strive to give every side equal coverage, a majority of journalists surveyed disagreed.

Andy Donohue, executive editor of projects for the publication Reveal at the Center for Investigative Reporting, who predicted the rise of the democracy beat in 2020, said in the journalism industry that there is “very broad recognition from everyone from newsroom leaders to reporters that we very much are in a red-alert threat for a real demise to our democratic system.” . . .

But in newsrooms, in books and on the air, journalists and experts are openly pondering how American democracy can win the argument for its own survival when the battle of persuasion is with a public skeptical of their authority. Americans’ trust in newspapers and TV news is at an all-time low. Many Republican politicians have simply stopped talking to mainstream reporters, preferring the company of friendlier conservative outlets and personalities.

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“The RNC ‘election integrity’ official appearing in DOJ’s Jan. 6 subpoenas”

Politico on the DOJ focusing on the involvement of the RNC’s director for “election integrity,” Joshua Findlay, in fake electors schemes in Arizona and Georgia.

In addition to a group of former President Donald Trump’s top lawyers, the Justice Department’s Jan. 6 probe is also seeking communications to and from a Republican National Committee staffer in a sensitive role.

At least three witnesses in DOJ’s investigation of so-called alternate electors in the 2020 election — two in Arizona and another in Georgia — have received subpoenas demanding communications to and from Joshua Findlay, who is now the RNC’s national director for election integrity. . . .

Findlay’s visibility into plans regarding alternate electors didn’t end on Election Day. POLITICO reviewed an email sent to him on December 12, 2020, showing David Shafer — head of the Georgia Republican Party, and himself an alternate elector — directing one of his subordinates to contact Findlay about the alternate elector plans.

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“Judge strikes down San Francisco law allowing noncitizen parents to vote in school elections”

San Francisco Chronicle:

A San Francisco law allowing noncitizen parents to vote in local school board elections was overturned Friday by a judge who said the California Constitution permits only citizens to vote.

The ordinance, the first of its kind in the state, was approved by city voters as Proposition N in 2016, took effect in 2018 and was extended indefinitely by the Board of Supervisors in 2021. It allows noncitizens, including undocumented immigrants and legal residents, to vote for school board candidates if they are a parent or guardian of a school-age child and are not in prison or on parole for a felony conviction.

A lawsuit by conservative organizations cited a provision of the state Constitution that declares, “A United States citizen 18 years of age and resident in this State may vote.” Lawyers for the city contended the “may vote” language did not prohibit a local government from authorizing others to vote, but San Francisco Superior Court Judge Richard Ulmer disagreed.

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“Russian national charged with U.S. political influence operation”

WaPo.

Federal authorities charged a Russian man Friday with a years-long malign influence campaign targeting American politics — alleging that he used American groups in Florida, Georgia and California to sow discord and push pro-Russia propaganda.

Aleksandr Viktorovich Ionov, who lives in Moscow, worked for nearly eight years with Russian officials to fund and direct the U.S. groups, according to the indictment filed in Florida. The 24-page indictment does not name the groups but charges that Ionov also advised the campaigns of two unidentified political candidates in Florida.

Ionov “allegedly orchestrated a brazen influence campaign, turning U.S. political groups and U.S. citizens into instruments of the Russian government,” Matthew Olsen, head of the Justice Department’s national security division, said in a written statement.

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“How Six States Could Overturn the 2024 Election”

Barton Gellman in The Atlantic on the potential implications of Moore v. Harper for presidential elections (if, a big if, any independent state legislature holding in the congressional election context extends to presidential elections, too).

To understand the stakes, and the motives of Republicans who brought the case, you need only one strategic fact of political arithmetic. Six swing states—Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and North Carolina—are trending blue in presidential elections but ruled by gerrymandered Republican state legislatures. No comparable red-trending states are locked into Democratic legislatures. . . .

If you give the legislature a blank check on the manner of appointing presidential electors, then a Republican majority could—in the most muscular version of ISL—simply disregard a Biden victory in the state’s popular vote and appoint Trump electors instead. . . .

But if the Supreme Court adopts the ISL doctrine in Moore, the argument that Texas made will become a model in 2024. The conditions that Texas cited in its argument are almost always present in contemporary elections. Legislatures pass laws on the conduct of the vote, but election administrators have to interpret those laws and set implementing rules such as precinct locations, polling times, and counting procedures. State courts sometimes mandate changes in the rules to comply with their state constitutions. It’s all but impossible to conduct an election without making rules or choices that the legislature did not specifically authorize.

The pernicious threat of ISL, wrote Richard L. Hasen, an election-law expert at UCLA, is that “a state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.”

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“Election conspiracies grip Nevada community, sowing distrust”

AP on a Nevada county commission that decided to recommend hand-counting all ballots for the odd reason that this would supposedly improve the security and accuracy of vote counts.

For months, conspiracy theories fueled on social media by those repeating lies about former President Donald Trump’s loss in 2020 inflamed public suspicions about whether election results could be trusted. In response, the commission put a remarkable item on its agenda: Ditch the county’s voting machines and instead count every vote on every ballot — more than 20,000 in a typical general election — entirely by hand.

Commissioners called a parade of witnesses, including three from out of state who insisted voting machines could be hacked and votes flipped without leaving a trace. They said no county could be certain their machines weren’t accessible via the internet and open to tampering by nefarious actors. . . .

Merlino’s departure and Nye County’s plans to scrap voting machines and hand-count every ballot open a window into the real-world consequences of unfounded conspiracy theories that have spread across the country since Trump’s defeat. The moves also raise questions about how local elections will be run when overseen by people who are skeptical of the process.

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“Election deniers are running to control voting. Here’s how they’ve fared so far”

NPR on how Republican candidates for secretary of state who lie about the 2020 election being stolen are faring.

Across the country, numerous Republican candidates for these positions — and others with some role in election administration, like governor and attorney general — have embraced the lie that widespread fraud affected the 2020 election results.

Of the 16 Republican secretary of state primaries that have been held so far this year, 12 featured at least one candidate who questioned the legitimacy of Joe Biden’s win in 2020, according to States United.

And four of those candidates won spots in November’s general election: in Alabama, Indiana, Nevada and New Mexico. A fifth candidate, Kristina Karamo in Michigan, won a party vote to become the Republican nominee there during an endorsement convention in April.

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“Wisconsin anti-voting-fraud activist commits voter fraud to make a point”

WaPo. Only this activist’s point isn’t the one he thought he was making, since there’s no evidence of widespread absentee voting fraud in Wisconsin.

A Wisconsin man this week ordered absentee ballots for himself in the names of a mayor and top state lawmaker in what he says was an attempt to expose vulnerabilities in the state’s voting system.

Harry Wait, who leads a group in southeastern Wisconsin that has focused on voting issues, said Thursday that he was willing to go to jail to prove his point. The stunt angered many state elections officials, especially those who have spent the last several years fighting baseless claims of widespread voter fraud. . . .

Wait said he used the state’s online elections portal Tuesday to request absentee ballots for the Aug. 9 primary to be sent to his home in the names of Assembly Speaker Robin Vos (R) and Racine Mayor Cory Mason (D).Wait has clashed with both of the officialsrepeatedly as the president of the group HOT Government, which takes its name from an acronym for “honest, open and transparent.”

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“Constitutional Citizenship in the U.S. Territories”

This Lawfare essay by Irina Manta and Cassandra Burke Robertson discusses a pending cert petition that raises the issue of who exactly is entitled to birthright citizenship and offers the Court an opportunity to overrule the Insular Cases.

In the summer of 2021, the issue arose again in Fitisemanu v. United States. This time, a three-judge panel on the U.S. Court of Appeals for the Tenth Circuit issued three separate writings on the question, with two judges concluding that the Constitution did not extend citizenship to residents of the territories, and one concluding that it did. A cert petition is currently pending before the Supreme Court.

Will the Supreme Court grant cert in the Fitisemanu case? It is likely to. And it should. 

This problem is not going away. Citizenship is an issue of extreme importance to many American Samoans. And they deserve certainty about whether they are protected by the Constitution’s grant of birthright citizenship.

Also this constitutional question extends beyond American Samoa. Congress has already extended statutory citizenship to the other territories. But if citizenship is only a matter of “legislative grace,” then Congress could choose to retract it at will, in whole or in part. For example, many residents of Puerto Rico are questioning whether their citizenship is secure or whether only statehood can guarantee their status. Courts have so far not allowed residents to seek a declaratory judgment to determine their status, finding the claim to be unripe until Congress takes affirmative steps to limit the status of Puerto Ricans’ citizenship. Depending on the political winds, that could become a reality. 

Some of the justices have expressed an interest in reconsidering the Insular Cases with an eye toward overruling them. In a recent concurrence to United States v. Vaello Madero, Justice Neil Gorsuch called for the Insular Cases to be overturned. He explained that he joined the majority opinion upholding the government’s decision to exclude residents of Puerto Rico from full participation in the Supplemental Security Income program “[b]ecause no party asks us to overrule the Insular Cases to resolve today’s dispute.” However, he condemned the Insular Cases in strong terms, writing that “[t]he flaws in the Insular Cases are as fundamental as they are shameful” and that “they have no home in our Constitution or its original understanding.” Gorsuch concluded that “the time has come to recognize that the Insular Cases rest on a rotten foundation” and that he “hope[s] the day comes soon when the Court squarely overrules them.” Justice Clarence Thomas, in a separate concurrence, suggested that “the Fourteenth Amendment’s Citizenship Clause” might have offered a stronger argument against the government’s differential treatment of Puerto Rico and the states. Finally, Justice Sonia Sotomayor, writing separately in dissent, explicitly noted that she agreed with Gorsuch’s view that it “‘is past time to acknowledge the gravity’ of the error of the Insular Cases.” 

The cert petition in Fitisemanu offers the Court that chance.

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